Excerpt:.....itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - as time passed, it became apparent that it was only a device on the part of ayni kumar to throw mannalal out of saddle and avni kumar did not give the shop, which he had promised to mannalal, who also did not take the matter to the court presumably because he was satisfied with occupying shop no. the appellant has denied his status as licencee as well as a tenant with respect to the shop in question, and has pleaded that he has become owner of the shop by adverse possession......this has been described as shop no. 1, in the course of this litigation. some time in august 1950 avnikumar was able to persuade mannalal to vacate shop no. 1 on the assurance that he would give another equally suitable shop to him, which was under construction and meanwhile he may shift to shop no. 18 for which he would riot charge any rent. mannalal accepted this proposal and vacated shop no. 1 and shifted to shop no. 18 in the same month. as time passed, it became apparent that it was only a device on the part of ayni kumar to throw mannalal out of saddle and avni kumar did not give the shop, which he had promised to mannalal, who also did not take the matter to the court presumably because he was satisfied with occupying shop no. 18 without payment of any rent. avni kumar then filed.....

Judgment:

C.M. Lodha, J.

1. This is a typical case where the landlord and the tenant have tried to out-run each other, the former to get possession over the rented premises by means fair or foul, and the latter trying to take an undue advantage of the law in his favour and it appears that ultimately the landlord had the under hand.

2. The facts giving rise to this litigation are these; Avni Kumar respondent (defendant No. 21 at one time owned a number of shops in Jaipur, one of which had been rented out to the appellant (defendant No. 1) Mannalal at a monthly rent of Rs. 4/-. This has been described as shop No. 1, in the course of this litigation. Some time in August 1950 AvniKumar was able to persuade Mannalal to vacate shop No. 1 on the assurance that he would give another equally suitable shop to him, which was under construction and meanwhile he may shift to shop No. 18 for which he would riot charge any rent. Mannalal accepted this proposal and vacated shop No. 1 and shifted to shop No. 18 in the same month. As time passed, it became apparent that it was only a device on the part of Ayni Kumar to throw Mannalal out of saddle and Avni Kumar did not give the shop, which he had promised to Mannalal, who also did not take the matter to the Court presumably because he was satisfied with occupying shop No. 18 without payment of any rent. Avni Kumar then filed a suit for arrears of rent for shop No. 18 against Mannalal some time in 1956 at the rate of Rs. 4/-per month. The suit was resisted by Mannalal on the around that no rent was agreed nor was any payable in respect of the shop No. 18. This plea of Mannalal prevailed with the courts and Avni Kumar's suit for arrears of rent was finally dismissed on 13-4-1961 by this Court. Avni Kumar then hit upon another plan and he sold shop No. 18 to the present respondent plaintiff. Radhevshvam by a registered sale deed dated 3-9-1962. After having purchased the shop in question plaintiff Radhevshvam served a notice on Mannalal and thereafter filed the present suit for possession of the shop in question along with mesne profits for 25 months at the rate of Rs. 4/- per month amounting to Rs. 100/- and also future mesne profits at the rate of Rs. 4/- per month.

3. The suit was resisted by the defendant appellant on a number of grounds. He denied the sale in favour of Radhev Shyam and further pleaded that at any rate he was neither a licensee nor a tenant in respect of the shop in question. On the other hand, he set up his ownership to the shop by adverse Possession.

4. After recording the evidence produced by the parties the learned Additional Civil Judge. Jaipur City by his judgment dated 29-10-1971 decreed the plaintiff's suit for possession of the shop in dispute and also granted a decree for Rs. 100/- as compensation for its use and occupation against the defendant. He further directed that the plaintiff shall be entitled to recover mesne profits at the rate of Rs. 47- Per month from 7-10-1965 upto the date of delivery of possession of the shop to the plaintiff.

5. Aggrieved by the judgment and decree of the trial Court the defendant Mannalal filed appeal but the same has been dismissed by learned District Judge, Jaipur City. Jaipur. Consequently, the defendant Mannalal has come in second appeal.

6. Learned counsel for the appellant has urged that by virtue of Section 40 of the Transfer of Property Act the appellant is entitled to enforce the contract regarding delivery of another suitable shop to him against the purchaser Radheyshyam to the same extent as against the vendor Avni Kumar. He has further referred to Section 48 of the Transfer of Property Act dealing with priority of rights created by transfer. In my opinion none of these sections can be of any help to the appellant. The appellant has denied his status as licencee as well as a tenant with respect to the shop in question, and has pleaded that he has become owner of the shop by adverse possession. It may be pointed out that the plea of adverse possession is wholly unfounded. The possession of the appellant never became adverse either to Avni Kumar or to his successor-in-title Radhev Shvam. It was Avni Kumar who inducted, the appellant into the shop in question even though the condition agreed upon was that the appellant would not be liable to pay any rent for it till he is given possession of another shop. The plaintiff has treated the appellant as a licencee and has alleged that since the licence had been revoked, by him, he was entitled to get possession of the shop from the appellant. It is not the case of the appellant that he is occupying the shop in Question as a tenant though by express contract no rent is payable. In view of the express denial of the appellant of his being a tenant it is not at all necessary to examine the question whether the plaintiff Radhey Shvam is entitled to evict the appellant under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act. 1950.

7. Learned counsel for the appellant also placed reliance on B. P. Sinha v. Som Nath AIR 1971 All 297 but that ruling is quite distinguishable inasmuch as the alternative premises provided to the tenant in that case carried the same rent as was agreed upon for the tenement originally rented out. The principle laid down in that case has therefore no application to the facts and circumstances of the present case specially when the defendant-appellant has altogether denied his status as a tenant.

8. It is true that the former landlord Avni Kumar is guilty of sharp practices having duped Mannalal to Part with shop No. 1 which he originally occupied as a tenant. But it is amply clear that Mannalal also fell a prey to greed and found it advantageous to him to continue to occupy the shop in question without paying any rent right from August 1950, not only upto 3-9-1963 when the plaintiff purchased it from Avni Kumar but even thereafter. Thus there are no comities whatsoever in favour of the appellant either and lack of bona fides on his Dart is also writ large. In any view of the matter Mannalal's remedy lay against Avni Kumar for damages or for any other relief to which he may consider himself entitled to but I am clear that he cannot oppose the claim of the plaintiff on the ground that he has become owner by adverse possession. Consequently I do not find any force in this appeal and hereby dismiss it with costs.

9. Learned counsel for the appellant submits that two months' time may be granted to the appellant to hand over vacant possession of the shop in question to the plaintiff-respondent. Mr. Kasliwal, learned counsel for the respondent, has no objection to the time being granted provided the appellant pays the mesne profits awarded by the Court below within a fortnight from today. Accordingly I direct that the execution of the decree under appeal may be deferred for two months from to-day provided the appellant pays up the mesne profits awarded by the lower Court within a fortnight.

10. Learned counsel for the appellant prays for leave to appeal to Division Bench. Leave is refused.